Paxton’s lawyers on Tuesday asked the Fifth Court of Appeals in Dallas to delay oral arguments in the case, which were originally set for Sept. 13, until after his impeachment trial. They are also representing Paxton in impeachment, the lawyers argue, noting it would be difficult to handle both cases at once.
“It is the first [impeachment] of a statewide elected official in over 100 years, and it presents extraordinarily complex issues which require extensive preparation. It would therefore prove difficult for counsel to provide competent representation in this matter as well without postponing argument,” wrote matter as well without postponing argument,” wrote Judd Stone and Christopher Hilton, two lawyers on leave from Paxton’s agency in order to defend him against impeachment.
The state bar disciplinary committee that filed the lawsuit will not oppose the request to postpone, a spokesperson confirmed Thursday.
Paxton’s impeachment trial, in which senators will vote on whether to remove him from office, is scheduled to kick off Sept. 5. It is likely to take two to three weeks, according to Lt. Gov. Dan Patrick, who will preside over the trial.
This means the state bar case is unlikely to resume until at least October.
See here for the previous update, which was about the hearing in Judge Blair’s courtroom. I missed his ruling, which came in January. This now-rescheduled hearing is Paxton’s appeal of Blair’s ruling. Note that all of this is about whether the hearing on the disciplinary charges against Paxton can proceed. The actual disciplinary hearing, if it is eventually allowed to proceed, would come many months later. It is what it is.
I don’t have a problem with this being pushed back till after the impeachment trial. Amusing as it would have been for them to overlap, this is the proper way to go, even for Ken Paxton. And it does keep the story in the news longer, so there’s that. I had originally written a post about how the hearing was going to overlap, based on a Texas Lawyer story, which is now obsolete. That original post is now beneath the fold if you’re curious.
Suspended Texas Attorney General Ken Paxton, already facing a Texas Senate impeachment trial Sept. 5, will also be in oral argument the following week in his state bar disciplinary case.
The complaints against Paxton brought by the Commission for Lawyer Discipline are also among the 20 articles of impeachment to be presented to the senate.
On Thursday, the Dallas Court of Appeals informed Paxton and the commission that oral argument will take place the morning of Sept. 13.
The commission filed its disciplinary petition against Paxton in May 2022 in the 471st District Court in Collin County. The petition was the result of a months-long investigation in response to complaints submitted by attorneys who protested Paxton’s alleged dishonest and repeatedly debunked representations in Texas v. Pennsylvania, a lawsuit filed at the U.S. Supreme Court that attempted to extend the Dec. 14, 2020, deadline for certification of presidential electors from the swing states of Pennsylvania, Georgia, Michigan and Wisconsin.
Paxton’s disciplinary case is now before the court of appeals because his counsel argued before Collin County 471st District Court Judge Casey Blair that the court did not have jurisdiction. Blair denied Paxton’s jurisdiction plea.
The reason the disciplinary case ended up on district court at all is because the Commission for Lawyer Discipline gave Paxton notice that a grievance committee panel held that credible evidence supported a finding of professional misconduct and recommended a public reprimand sanction.
When Paxton refused to accept the sanction, the commission was required to initiate the disciplinary action in court.
An amicus curiae submitted by senior members of the bar and Lawyers Defending American Democracy notes that during the investigatory hearing two former Texas State Bar presidents testified on the harms to the profession if the ethics rules were not enforced.
Authored by Austin attorney James C. Harrington, the amicus brief states “Paxton’s separation of powers argument is essentially that, because the attorney general has ‘broad discretion’ to conduct the state’s civil litigation, the application of the state’s law that subjects all Texas-licensed attorneys to the commission’s jurisdiction ‘unduly interferes’ with exercise of that ‘discretion’ by attorneys in his office. But ‘broad discretion’ does not mean unlimited discretion.”
Paxton’s argument seems to be that attorneys in his office must be able to engage in professional misconduct in order to “effectively exercise the attorney general’s constitutionally assigned powers,” Harrington said.
The purpose of the sovereign immunity doctrine is to prevent interference with the allocation of government funds and to avoid having the judiciary interfered with the responsibilities of other branches, Harrington noted.
“By contrast, the commission’s proceedings discipline Texas-licensed attorneys solely by imposing professional sanctions on them personally for their professional misconduct,” Harrington said.
See here for the previous update, which was about the hearing in Judge Blair’s courtroom. I missed his ruling, which came in January. This hearing is Paxton’s appeal of Blair’s ruling. Note that all of this is about whether the hearing on the disciplinary charges against Paxton can proceed. This hearing, and the inevitable appeal to the Supreme Court regardless of the ruling, must happen before we can get to the merits of the case, and only then if the trial judge’s ruling is ultimately upheld. We’re on another long slog through the courts to maybe, hopefully, one day get some measure of accountability for Ken Paxton. At least it’s still happening.